Terms of Service
These Terms of Service (“Terms”) are entered into by and between you and HERDsay.com. (”HERDsay”). These Terms govern your use of applications provided by HERDsay, including without limitation, the various web pages operated by HERDsay, including HERDsay (“Site”). By using the Site, you acknowledge that you have read and understood all of the Terms of Service, and you agree to be bound by these Terms. You acknowledge and agree that the provisions, disclosures and disclaimers set forth in these Terms are fair and reasonable and your agreement to follow and be bound by them is not the result of fraud, duress or undue influence exercised upon you by any person or entity. The Site is not permitted to be used by anyone under thirteen years of age. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SITE.
HERDsay reserves the right to change the Terms under which the Site is offered in its sole and absolute discretion at any time without notice. It is your responsibility to review these Terms for any changes each time that you use the Site. All changes to the Terms are effective from the date posted. Unless otherwise amended these Terms shall apply to any modified version or upgrade of the Site.
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. PLEASE NOTE THAT HERDSAY DOES NOT PROVIDE WARRANTIES FOR THE SITE. THESE TERMS ALSO LIMIT HERDSAY’S LIABILITY, AS FURTHER SET FORTH.
HERDsay enables users to submit searches, questions and/or create User Generated Content (“UGC”) by accessing the Site via the Internet browser of the user’s choice and/or by using a mobile device. Users are responsible for obtaining access to the Site and that access may involve third party fees, costs, or expenses (such as those incurred in association with Internet access, wireless telephone access, text messaging, or other access and communication services fees).
Your access to the Site may be restricted or limited by HERDsay or by your telecommunications provider and service plan. You may elect to receive UGC and updates from other users of the Site (“User Comments”). HERDsay is not in any manner legally responsible for any UGC provided, or actions taken, by other users of the Site, including any UGC or actions which may be taken as offensive, defamatory, harassing, fraudulent, inaccurate, or otherwise objectionable.
The Site may contain links to third party web sites or programs that are not controlled by HERDsay. HERDsay is not responsible for the content, offers or privacy policies of such sites and programs, including, without limitation, your redemption of such offers or a merchant’s refusal to honor any offer. Your dealings with third parties are solely between you and the applicable third party.
2. LIMITED USE
HERDsay reserves the right (but does not have the obligation) to restrict the use of certain features of the Site, and/or make changes to certain features or content of the Site. These changes or restrictions shall be at the sole discretion of HERDsay.
Although HERDsay hopes you will find the information that you obtain via the Site to be useful, HERDsay does not guarantee that the information will (a) be accurate, complete or useful in any way whatsoever, or (b) include all of the information available relating to a topic or search. You may report any concerns to HERDsay by use of the Contact link located on the HERDsay homepage. Your use of the Site, including any communication by, with or to HERDsay, may be recorded. By using the Site, you consent to such recording.
The Site is provided on an “as-is” basis and should not be relied upon for any purposes whatsoever. No commercial use or use that could be construed as commercial use is permitted without the express written consent of HERDsay. Any rights not expressly granted under these Terms are reserved by HERDsay. HERDsay grants you a personal, nonexclusive ability to use the Site only as authorized in these Terms.
You may use the Site only for legal and appropriate uses. HERDsay reserves the right to make changes to the Site at any time and without notice. Your access to and use of the Site is completely at the discretion of HERDsay, and may be blocked, suspended, restricted or terminated without prior notice at any time, for any reason, including, without limitation, for any violation of the following rules:
• You must comply with all state, federal, and/or international laws, rules, policies and/or licenses governing communications while using the Site, and with all applicable copyright, trademark, or other intellectual property rights laws.
• You may not submit UGC that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, or are otherwise objectionable.
• You may not submit UGC designed to elicit responses that relate to illegal activity or infringe upon another party’s intellectual property rights.
• You may not post detailed, personal information regarding subjects contained within this Site. This includes, but is not limited to, phone numbers, street and email addresses, social security numbers, credit card information, driver licenses, license plates and identification cards.
• You may not allow anyone else to use the Site who does not agree to these Terms.
• You may not submit UGC to the Site using automated means without the prior express written consent of HERDsay.
• You may not sell, use, transfer, reproduce, modify, edit, publish, perform, display, post, transmit or distribute the transcript of any communication that you may have in connection with your use of the Site without the written permission of HERDsay.
• You may not upload, post, email, transmit or otherwise make available any UGC which infringes any trademark, patent, copyright or trade secret or other proprietary right of any party, unless you are the owner of the rights or have the permission of the owner to post such content.
• You may not use the Site for commercial purposes.
• You may not interfere, disrupt or attempt to interfere with the Site or another person’s use of the Site by use of any program, script, command, device, software, routine, or otherwise. This includes, but is not limited to attempts to overload the Site or to excessively burden the resources of HERDsay.
• You may not use the Site if HERDsay finds such use is no longer commercially feasible.
• You may not attempt to gain unauthorized access to any portion or feature of the Site.
• You may not create or use accounts by automated means, under false or fraudulent pretenses, or in a way that is misleading or misrepresents your identity or affiliation with another person or entity.
• You may not submit UGC which falsely expresses or implies that such content is sponsored or endorsed by HERDsay.
• You may not embed any page of the Site in “frames” running from other websites.
• You may not mirror the Site on any website or server.
• You may not remove any copyright, trademark or other proprietary rights notices contained in or on the Site.
• Your access to the Site is restricted to conventional non-accelerated browsers.
• You may not transmit any worms, Trojan Horses, viruses, or items of a destructive nature.
• Robots and crawlers must follow the guidelines found in our robots.txt file. Robots ignoring these guidelines may be excluded from the Site.
• You agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Site.
In consideration for HERDsay granting you access to the Site, you hereby expressly agree to submit only true, accurate, current and complete information (UGC) to the Site. If HERDsay has reasonable grounds to suspect that the information that you have provided is untrue, inaccurate, not current or incomplete, HERDsay has the absolute right to suspend or terminate your use of the Site at any time and refuse you any and all current or future use of the Site. Any unauthorized use of the Site will terminate any permission or license granted under these Terms and may violate applicable laws and statutes including trademark laws, copyright laws, and communications regulations and statues. All violators may be prosecuted to the fullest extent of the law.
3. INTELLECTUAL PROPERTY
Unless otherwise noted, HERDsay is the owner or licensee of all copyrights involving the content, designs, information, text, software, code, data, images and materials displayed on, or used in connection with, the Site (“Content”). You expressly assign to HERDsay any intellectual property rights that may result from your contributions to the Site (“Submissions”).
By making any Content or Submissions available through the Site, HERDsay does not grant any license or other authorization to copy, use, reproduce, perform, display, or distribute its copyrightable material, or other intellectual property, except as provided herein. You may not modify, copy, distribute, transmit, display, reproduce, publish, license, create derivative works from, transfer, or sell any Content and/or Submissions, unless you first obtain the written permission of HERDsay. If you make use of any Content and/or Submissions other than as authorized herein, you may be in violation of copyright laws and other laws of the United States and other countries, as well as applicable state laws. Other than Your Submissions, HERDsay does not claim ownership of any other correspondence, materials, and information that you submit to HERDsay, or that you post on the Site. You automatically grant to HERDsay an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, reproduce, copy, adapt, modify, translate, display, distribute, make available, and store Submissions, and to prepare derivative works based on these Submissions. Additionally, you agree that HERDsay may sublicense and/or assign its rights in Submissions without compensation. HERDsay is under no obligation to post or use any of Your Submissions, is under no obligation to maintain Your Submissions and may remove Your Submissions at any time at the sole discretion of HERDsay. You agree that you shall have no recourse against HERDsay for any alleged or actual infringement of any proprietary rights in Your Submissions, and that the submission of such materials to HERDsay, irrevocably waives any and all “moral rights” in Your Submissions including the rights of paternity and integrity. You represent and warrant that you own or otherwise control all rights to Your Submissions, and that the content is accurate, will not cause harm to any person or entity, that the use of Your Submissions does not violate these Terms, and that you indemnify HERDsay for all claims resulting in any way from the use of Your Submissions.
HERDsay, the HERDsay logo, as well as other trademarks and logos and other names of HERDsay’s products referenced on the Site, are exclusively owned by HERDsay. All other products, services, and company names mentioned on the Site are the trademarks of their respective owners. By placing them on the Site HERDsay does not grant to you any license or other authorization to copy, reproduce, or use the trademarks or logos, except as provided herein. HERDsay is the owner, licensee, or assignee of all legal right, title and interest in and to the Site, including any intellectual property relating to the Site which may include any registered or unregistered rights or any patent pending technology.
If you believe that any material on the Site infringes on any copyright that you own or control, you may contact HERDsay at herdsay.com/contact/
4. THIRD PARTIES
The Site may contain advertisements, promotions, and links to external, third party websites. Your correspondence or business dealings with, or participation in promotions of, other parties found on or through the Site are solely between you and such parties. This includes payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings. You agree that HERDsay is not responsible or liable for any loss or damage incurred as the result of any such dealings. HERDsay does not endorse, and is not liable for any content, products, services, software or other materials available on such other sites. HERDsay is not responsible for the privacy practices or the content of other websites. For your protection, please refer to the terms of service and privacy policies of the respective websites. You acknowledge, understand and agree that HERDsay shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such other websites. HERDsay shall not be liable for any errors or delays in the content, goods or services available on such other websites, or for any actions taken or not taken in reliance thereon. HERDsay is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to amazon.com.
5. DISCLAIMER OF WARRANTIES
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SITE ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. HERDSAY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, ERROR FREE, OR VIRUS FREE, OR THAT THE SITE WILL MEET YOUR REQUIREMENTS. ANY INFORMATION PROVIDED BY OR OTHERWISE OBTAINED THROUGH THE SITE HAS NOT BEEN VERIFIED, AND NEITHER HERDSAY NOR ANY PERSON GUARANTEES, REPRESENTS, OR WARRANTS THAT SUCH INFORMATION IS ACCURATE, COMPLETE, RELIABLE, OR OTHERWISE VALID. HERDSAY DOES NOT ENDORSE OR RECOMMEND, AND EXPRESSLY DISCLAIMS LIABILITY FOR, ANY PRODUCT, MANUFACTURER, DISTRIBUTOR, SERVICE OR SERVICE PROVIDER MENTIONED IN ANY CONTENT, COMMENT, OR RESPONSE. HERDSAY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE. THESE DISCLAIMERS APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF HERDSAY’S RECORDS OR INFORMATION, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR ANY OTHER CAUSE OF ACTION.
6. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE THAT INFORMATION TRANSMITTED THROUGH THE INTERNET, THE SITE IS NOT SECURE.
NEITHER HERDSAY, NOR ANY OF HERDSAY’S EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, OR LICENSORS (COLLECTIVELY, “HERDSAY ASSOCIATES”) SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ATTORNEYS’ FEES, OR FOR LOST DATA OR LOST PROFIT, ARISING OUT OF YOUR USE OF THE SITE OR INABILITY TO GAIN ACCESS TO OR USE THE SITE OR OUT OF ANY BREACH OF ANY WARRANTY, EVEN IF HERDSAY OR A HERDSAY ASSOCIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.
YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH HERDSAY OR ANY HERDSAY ASSOCIATE IS TO STOP USING THE SITE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF THE FOREGOING LIMITATIONS ARE UNENFORCEABLE, YOU AGREE THAT HERDSAY’S LIABILITY TO YOU UNDER THESE TERMS SHALL NOT EXCEED FIVE DOLLARS ($5.00 USD).
THE SITE IS CONTROLLED, OPERATED AND ADMINISTERED BY HERDSAY FROM ITS OFFICES WITHIN THE UNITED STATES. HERDSAY MAKES NO WARRANTY OR REPRESENTATION THAT MATERIAL AVAILABLE THROUGH THE SITE IS LEGAL, APPROPRIATE, OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. IF YOU ACCESS THE SITE FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, AND HERDSAY ACCEPTS NO RESPONSIBILITY FOR SUCH ACCESS.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS HERDSAY AND THE HERDSAY ASSOCIATES, FROM AND AGAINST ANY CLAIMS, DAMAGES, COSTS, AND EXPENSES, INCLUDING ALL COSTS OF LEGAL PROCEEDINGS AND ATTORNEYS’ FEES, ARISING IN CONNECTION WITH USE OF THE SITE AND THE SERVICES BY YOU, OR IN CONNECTION WITH A VIOLATION OR BREACH OF THESE TERMS BY YOU, INCLUDING WITHOUT LIMITATION, YOUR VIOLATION OF ANY LAWS GOVERNING COMMUNICATIONS OR INTELLECTUAL PROPERTY.
YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL DISCLAIMERS IN THESE TERMS AND THE PROVISIONS OF THESE TERMS REFLECT A FAIR AND REASONABLE ALLOCATION OF RISK BETWEEN HERDSAY AND YOU.
7. DISPUTE RESOLUTION
These Terms and the relationship between you and HERDSAY shall be governed by the laws of the State of California, without regard to any conflict of law or choice of law provisions of any state to the contrary. To the extent you have in any manner violated or threatened to violate HERDSAY’s intellectual property rights or your obligations with respect to HERDsay’s confidential information, HERDsay may file an action seeking injunctive or other appropriate relief in any court of competent jurisdiction, and you consent to the personal jurisdiction of and venue in such courts and waive any right to a jury trial in connection with any such action. Without limiting the foregoing, you consent to the personal jurisdiction of and venue in the courts located within San Diego County, California, in the event of any dispute, and waive any future right to object to this designation of jurisdiction and venue and waive any right to a jury trial in connection with any such action. You agree that any claim or cause of action arising out of or related to use of the Site or these Terms must be brought within one (1) year after such claim or cause of action accrues or be forever barred. The one-year period begins on the date when the claim first could be filed. If it is not filed in time, then that claim is permanently barred. This applies to you, your successors and permitted assigns.
The failure of HERDsay to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect. The headings used in these Terms are for convenience only and such headings are not to be used in determining the meaning or interpretation of these Terms. Nothing in these Terms shall be construed to establish a partnership, joint venture, agency, employment, or other business relationship between you and HERDSAY. You shall have no right to assign all or any part of these Terms, and any attempt to do so shall be void. HERDsay shall have the right to assign these Terms and to sublicense any and all of its rights under these Terms.
When you contact HERDsay, you consent to receive communications from HERDsay. HERDsay may contact you electronically or by other means HERDsay chooses. You agree that all agreements, notices, disclosures, and other communications that HERDsay provides to you via text message, email, or other form of electronic communication shall satisfy any legal requirement that such communications be in writing. You are granting express permission to receive our response even if you are registered on a Do-Not-Call registry. HERDsay is not responsible for any communications which are lost, intercepted or misdirected. HERDsay is not responsible for information sent using text, voice, or other communication services. You may contact HERDsay at herdsay.com/contact/
These Terms, including any documents referenced herein, represent the entire understanding between you and HERDsay regarding your relationship with HERDsay and your use of the Site. These Terms shall not be construed against any party by reason of their preparation, but shall be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting. These Terms supersede all previous written or oral agreements between you and HERDsay with respect to such subject matter. You agree that the English language version of the Terms will govern your relationship with HERDsay. Notwithstanding any provisions of these Terms, HERDsay has available all remedies at law or equity to enforce these Terms.
Last Updated: November 23, 2014